Slapped by the Supremes

By

In the months leading up to December's U.S. Supreme Court oral argument in a case involving military recruiters' access to college campuses, and in the days that followed the hearing, legal experts increasingly predicted a lopsided ruling in favor of the government. They were wrong, but only in understating just how lopsided it would be.

A unanimous court -- ruling 8-0, as Associate Justice Samuel A. Alito Jr. had not yet joined the court at the time of the argument -- on Monday thoroughly rejected the arguments made by a coalition of law schools and law school faculties that had challenged the so-called Solomon Amendment. The law threatens to withhold federal funds from institutions that limit military recruiters’ access to campuses, which many law schools historically have done to protest the Defense Department’s discriminatory policies toward gay people.

In its decisive ruling Monday in the case known as Rumsfeld v. Forum for Academic and Institutional Rights (No. 1152), the Supreme Court dismantled step by step arguments by the law school plaintiffs that the Solomon Amendment infringed their First Amendment rights. The court went out of its way, too, to take a slap at several other leading law professors who had filed friend of the court briefs opposing the law. At core, said Chief Justice John G. Roberts Jr., who wrote the court's opinion, for the court, the law schools fundamentally misunderstood the Solomon law to govern speech, when it really applies to conduct.

"FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect," Chief Justice John G. Roberts Jr. wrote for the court. "The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment." And comparing the requirement that law schools grant access to military recruiters to other aggrieved parties -- schoolchildren forced to say the Pledge of Allegiance or a Boy Scout troop required to appoint a gay person as its leader -- "plainly overstates the expressive nature of [the law schools'] activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents," Roberts wrote.

The forcefulness of Monday's ruling left legal observers and parties on both sides of the case in general agreement that law schools and colleges face little choice but to treat Pentagon recruiters in the same way they treat other employers (if they wish to continue to take in federal funds -- a handful of smaller law schools that do not have any such funds at stake are expected to maintain their bans on military recruiters).

The main question that remains, is how much protesting that opponents of the military's policy are likely to do when the recruiters come to their campuses to keep up their pressure on the military to change the controversial "don't ask, don't tell" policy -- those who brought the lawsuit promise significant opposition.

A Many-Year Fight

The military recruiting issue has been contentious from the day in 1994 that Congress adopted the Solomon Amendment, named for its sponsor, the late Rep. Gerald Solomon (R-N.Y.). Legislators enacted the law, which initially applied only to funds from the Defense Department, because more than two dozen law schools had voted to bar military recruiters because the Pentagon’s treatment of gay servicemen and women violated the institutions’ own policies barring discrimination against gay people.

Congress amended the law twice in the late 1990s in ways that generally expanded its reach, and by 1999, colleges that barred recruiters’ access to their students risked not only Defense Department funds but those from the Education, Health and Human Services, Labor and Transportation Departments, too. Another change allowed the Pentagon to deny its funds to an entire university if only one part of it, like a law school, restricted military recruiters.

College officials and the government sought compromises over the next few years, and many institutions crafted policies that gave military recruiters at least some access to their students.

But the Pentagon pushed the issue more aggressively after the attacks of September 11, 2001, telling colleges to treat military recruiters like any other employer. Congress codified that more aggressive approach in Defense Department spending legislation in 2004, which said that institutions needed to give military recruiters access "that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer."

That steady intensification prompted the lawsuit that FAIR, a coalition of about three dozen law schools and law school faculties, filed in 2003. In that case, a federal district court sided with the Pentagon late that year, but the U.S. Court of Appeals for the Third Circuit, in reversing the lower court in November 2004, concluded: “The Solomon Amendment conditions funding on the law schools’ propagation, accommodation, and subsidy of the military’s recruiting, which is expression.”

In its ruling Monday, the Supreme Court largely avoided the question of whether it is appropriate for the government to condition funding for colleges on whether they embraced military recruiters or not, focusing instead on whether, as the Third Circuit concluded, the Solomon Amendment impairs the First Amendment rights of law schools or colleges.

It does not, the Supreme Court ruled, for several reasons. First, while the federal law does require law schools to post notices and otherwise tell students about military recruiters' visits, that required assistance "is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto 'Live Free or Die,' and it trivializes the freedom protected in [those cases] to suggest that it is."

Second, the court soundly rejected FAIR's argument that by playing host to the military recruiters, law schools would be seen by students and others as accepting the Pentagon's "don't ask, don't tell" policy. "Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies," Roberts wrote in the opinion. As was true in several points in the opinion, the chief justice added a dig. Noting that the court had previously ruled that high school students can appreciate the difference between a speech their school sponsors and one that it allows to occur because it is legally required, Roberts said: "Surely students have not lost that ability by the time they get to law school."

Lastly, the court also dismissed the notion that letting military recruiters on their campuses undermines their ability to express their opposition to the Pentagon's policy on gay service members, and that the law requires the schools to "associate" with the Defense Department.

Differentiating the current case from other cases in which the court opposed changes imposed from outside in an organization's membership, Roberts wrote: "Students and faculty are free to associate to voice their disapproval of the military's message; nothing about the statute affects the composition of the group by making the group less desirable. The Solomon Amendment therefore does not violate a law school's First Amendment rights. A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message."

Reaction to the Ruling

Federal officials expressed satisfaction with Monday's ruling but gave relatively little insight on how aggressively they might push to get military recruiters onto campuses. "Equal access to law schools -- and all schools for that matter -- for our recruiters is crucial to ensuring we attract a diverse and highly qualified pool of applicants," said Lieut. Col. Ellen G. Krenke, a Pentagon spokeswoman. "DOD is not asking for special treatment or seeking to compel or suppress free speech. We simply want to be able to compete on an even playing field for the best and brightest that our nation's universities have to offer."

Eugene Volokh, a law professor at the University of California at Los Angeles and founder of The Volokh Conspiracy, said he expected the Pentagon to push for access to campuses, but to be reasonable about it. “If a university denies equal access by saying you can’t go on campus, the government is concerned," Volokh said. "If a room looks inferior or the military recruiters don’t get coffee or donuts, it’s unlikely they’ll take the school to court.”

John Eastman, a professor of law at Claremont University director of the Claremont Institute Center for Constitutional Jurisprudence, which filed a brief urging the court to uphold the Solomon Amendment, said it is imperative that military recruiters are given the same access that the “most preferred” recruiters receive. “If schools put them off in the back corner or schedule their time slot at midnight, that’s not permissible,” said Eastman.

Opponents of the Solomon Amendment could not hide their discouragement over the court's ruling, and the overwhelming nature of the defeat. "We're disappointed at losing, and especially at losing 8-0, because we thought the reasoning of the Third Circuit was sound," said Carl Monk, head of the Association of American Law Schools, which had filed an amicus brief in the case. Monk said law schools would once again be faced with the "Hobson's choice" of "losing millions of dollars in government funding or being required to carve out a special exception to their nondiscrimination policies for the military."

"This undermines the law schools' ability to teach and advance their own values, just as it would undermine the law schools' ability to do that if a law school was forced to permit a racially discriminatory employer," he said.

Like most of those interviewed, Monk said he believed that virtually all institutions -- except perhaps for small, independent law schools like William Mitchell School of Law and Vermont Law School that do not accept any federal funds -- would essentially have no choice but to open their campuses to recruiters. But he said he expects many institutions to engage in what he called "ameliorative activity" to make clear that the schools oppose the military's recruitment policy.

Kent Greenfield, a law professor at Boston College and president of the Forum for Academic and Institutional Rights, said the "silver lining" in the case from the law schools' standpoint was that the court made clear that "schools can do anything they want to protest, as long as they don't restrict access." He predicted an "increase in protests" by students and faculty members on campuses where recruiters show up. "Now that we've lost in litigation, we'll still push ahead on the core interest we've been fighting for: the right for all of our students to serve our country in the military, regardless of who they love."

The dean of Yale University's law school, Harold Hongju Koh, said that's just what he expected students and professors at his institution to do. "The Court's decision is clearly an invitation for law schools to engage in more speech, not less, in the months ahead. Many of us here at Yale Law School plan to accept that invitation to continue to speak out against the government's discriminatory military recruiting practices," he said in a prepared statement. Koh added that Yale -- which had won a round in a separate federal lawsuit challenging the Solomon law, Burt v. Rumsfeld -- was still sorting out the impact of the Supreme Court's ruling.

Other legal experts questioned whether the law schools and professors who challenged the Solomon Amendment had done so in a way best designed to achieve their ultimate goal. John Banzhaf, a law professor at George Washington University, noted that the court had roundly rejected the views of both FAIR and of groups of constitutional scholars from leading universities that had filed briefs challenging Solomon.

"One interesting part of today's ruling," Banzhaf wrote in an e-mail message, "is how so many nationally known law professors at top law schools like Harvard, Yale, and Columbia (and my own law school) could have been so very wrong in putting together this lawsuit to challenge the Solomon amendment, and in asserting that the statute violated the First Amendment under no less that four different constitutional theories. Every single justice who participated -- liberal, conservative, and middle of the road -- ruled without exception that all of the legal theories they advanced were without merit."

The professors may just have been wrong from a legal standpoint, Banzhaf wrote -- but it is even worse, he suggested, if they proceeded with the case because they put their political views, "based upon their concerns about the underlying interests of gays or their desire to control access to their campus," ahead of their legal judgment.

"When all of their predictions turn out to be so wrong, it only leads credence to the arguments that we law professors live in ivory towers oblivious to the real world, or that our publicly expressed opinions are based more on liberal guilt than hard-nosed meaningful real-world analysis," he said.

Howard J. Bashman, an appellate lawyer who argued the pro-Solomon views of three groups of law student military veterans at the Third Circuit level and predicted an easy win for the government, saw both danger and opportunity for law schools in the Supreme Court's ruling Monday.

The court's conclusion that Congress did not need to tie its requirement about access for military recruiters to lawmakers' power to dictate the terms of federal spending, he said, means that Congress could conceivably have chosen (or could still choose) to toughen the requirement, directly ordering colleges to admit military recruiters.

"If, under the Constitution, Congress can order military recruiters on campuses because it has the power raise an army, it could go further and say that the military must have equal access to all institutions of higher education," and threaten to impose penalties on any college that does not provide that access, Bashman said.

Ultimately, though, Bashman said, law school and higher education officials who oppose the military's policy on gay people should not assume that Monday's Supreme Court loss will doom their cause.

"By allowing law school recruiting at these institutions, I think it will help in the long run bring an earlier end to 'don't ask, don't tell,' " Bashman said. "As more enlightened people come through the ranks of the military, more people may realize that the policy is antiquated."